Current Affairs

January 21, 2014

Discovery Rules: Former Sen. Jon Kyl (R-Ariz.), a senior advisor at Covington & Burling, writes an op-ed in support of proposed changes to the federal discovery rules aimed at reducing the cost and burdens of litigation, in The Wall Street Journal. Read previous coverage of the issue here in The National Law Journal.

Barging Counsel?: As the House Oversight Committee interviewed a whistleblower Thursday, "two guys from Commerce's General Counsel office—very much uninvited—barged into the hearing," The New York Post reports.

January 17, 2014

Lawmakers, civil rights advocates and tech companies shared a basic response to President Barack Obama's surveillance reforms: Good first step, but there's more to be done.

Congress needs to take action to address concerns about the scope of surveillance programs, Obama said. Much of the reaction focused on proposed changes to the most controversial program—the bulk collection of telephone records by the National Security Agency under Section 215 of the USA Patriot Act.

Obama also called for greater transparency when it comes to the secretive Foreign Intelligence Surveillance Court, which oversees NSA surveillance efforts.

A group of tech companies that are pushing for reforms—including Apple, Facebook, Microsoft Corp., Twitter, Yahoo! and AOL—issued a joint statement after Obama's speech. Several of the companies last year filed petitions in the surveillance court seeking the ability to provide more information about government demands for consumer data.

Veteran Supreme Court and appellate advocate Gene Schaerr is leaving Winston & Strawn to represent the state of Utah in defense of its constitutional ban on same-sex marriage.

“We are pleased that he is so eager to represent our state and that he would leave his firm so he can focus on this case exclusively,” Utah Attorney General Sean Reyes said in a press release announcing the hiring of Schaerr Thursday. Reyes said Schaerr has agreed to cap his fees at $200,000 for his work on the case before the U.S. Court of Appeals for the Tenth Circuit.

Schaerr will lead the team appealing the December 20 decision in Kitchen v. Herbert in which a U.S. District Court judge struck down the Utah constitutional provision prohibiting same-sex marriage on equal protection and due process grounds.

“Gene Schaerr is an elite Supreme Court and appellate expert. He is from Utah. He understands our unique history and community,” Reyes said in the announcement, also noting that Schaerr used to work with the late U.S. solicitor general Rex Lee. Lee is a revered figure in Utah, where he also served as president of Brigham Young University. Schaerr worked with Lee at Sidley Austin before joining Winston in 2005.

Democrats and Republicans agreed to approve all the nominees, most with only a voice vote. There wasn't any back-and-forth commentary about the pace of the confirmation process for President Barack Obama's judicial picks, which had become common during hearings last year.

January 15, 2014

The nation's legal aid providers stand to get back funding this year under Congress' latest budget plan.

A bipartisan appropriations bill moving through Congress this week would undo last year's $25 million budget cuts to Legal Services Corp, a spokesman said today. Those cuts, which came as a part of sequestration, brought a 7 percent reduction in grants for the 134 legal aid agencies that rely on LSC funding.

Lawmakers also included $2.5 million in the bill for LSC to start a new grant program—the Innovation Fund—to promote creativity in the expansion of legal assistance. The $2.5 million came at the request of the staff of Rep. Frank Wolf (R-Va.), who heads the House appropriations subcommittee that controls LSC funding.

January 14, 2014

Congress is planning to give some relief to the federal judiciary after last year's budget cuts.

A bipartisan appropriations bill released Monday night would provide the federal courts an increase of $316 million in discretionary spending—or 5 percent above current funding—for the 2014 fiscal year, according to a summary of the 1,582-page bill from the Senate Appropriations Committee.

That would almost erase the $350 million in budget cuts to the judiciary in March as part of sequestration, which has caused almost a year of layoffs and furloughs in the federal courts and threatened the judiciary's ability to pay court-appointed private counsel in criminal cases.

January 13, 2014

The Senate today confirmed Robert Wilkins to the U.S. Court of Appeals for the D.C. Circuit, marking the final step in an aggressive push from the White House and Senate Democrats to leave a mark on a key federal appeals court.

President Barack Obama in June simultaneously nominated Wilkins and two other lawyers—Patricia Millett and Cornelia Pillard—to the D.C. Circuit.

With Monday's confirmation vote, Wilkins became the fourth Obama pick since May to take a seat on the D.C. Circuit. That matches the number of judges George W. Bush appointed to the appeals court, whose decisions in the regulatory arena—including securities, communications and the environment—have national sweep.

The Senate voted 55-43 to confirm Wilkins under a new streamlined confirmation process that came into place amid the partisan fight in the Senate over the D.C. Circuit. Wilkins will join the appeals court from the U.S. District Court for the District of Columbia, where he's been a trial judge since 2010.

The Senate in December confirmed two other judges to the D.C. Circuit—Millett, a former Akin Gump Strauss Hauer & Feld partner and Pillard, who taught at Georgetown University Law Center.

Republicans argued that the D.C. Circuit workload did not justify the additional $1 million per year cost per judge. They accused Obama of filling the vacancies to "pack" the court in support of his legislative and regulatory proposals.

The confirmation of Obama's D.C. Circuit picks shifts the balance of active judges from an even split—four Republican appointees and four Democratic appointees—to a 7-4 advantage for Democrats. Republican-appointed judges hold a 9-8 advantage when senior judges are counted.

Obama's first successful appointment to the D.C. Circuit came in May, when the Senate confirmed former O'Melveny & Myers appellate partner Sri Srinivasan. He left the Justice Department Office of the Solicitor General to join the bench.

Wilkins’ confirmation came the same day that Miguel Estrada—unsuccessfully nominated to the D.C. Circuit under President George W. Bush—argued in the high court over the scope of the power of the president to use the recess appointment authority. (Democrats blocked Estrada’s nomination to the D.C. Circuit.)

Hours before the Wilkins vote, Estrada, co-chair of the appellate and constitutional law practice at Gibson, Dunn & Crutcher, argued a case on behalf of Senate Republicans that Obama overstepped his authority in making recess appointments to the National Labor Relations Board in 2012.

"It's certainly interesting. Miguel Estrada is an extraordinary lawyer, and his own experience with the Senate certainly added significance to the situation as I saw it," Sen. Mike Lee (R-Utah) said after watching the Supreme Court arguments. "This added a degree of poignancy that’s kind of intangible."

Republican senators left the Supreme Court arguments today confident that they would prevail in the constitutional showdown over the president's power to make recess appointments.

Sen. Mike Lee (R-Utah), on the front steps of the court, said he believed the justices would deliver a lopsided win on at least one of the three key questions at issue in NLRB v. Noel Canning. That would let stand appeals court rulings that President Barack Obama overstepped his authority when he sidestepped the Senate's advise-and-consent power in January 2012.

Lee pointed to a particular exchange in the Supreme Court oral arguments today—about what language the Senate used when creating its so-called "pro forma" sessions to avoid going into a recess—as the Obama administration's weak point.

More Jobs: The legal industry in December picked up 800 jobs, The Am Law Daily reports.

Sharon Condolences: President Barack Obama and other U.S. leaders were cautious in the condolences they offered for former Israeli Prime Minister Ariel Sharon who died Saturday, POLITICO reports. Statements about Sharon have to be "tactful about using words like 'bold' and 'courageous,' so that nobody gets the feeling that this is a too-clever-by-half insinuation that we wish he were here today," said Washington Institute for Near East Studies senior fellow David Pollock.

Neiman Breach: Some customers of Neiman Marcus Group Ltd. had their payment card information stolen and fell victim to unauthorized purchases due to a cyber attack, The Associated Press reports. The luxury retailer confirmed the breach Saturday.

January 10, 2014

The Senate is expected to confirm U.S. District Judge Robert Wilkins to a key Washington federal appeals court Monday afternoon.

The Senate voted 55-38 on Thursday to advance the nomination of Wilkins to a final vote. Wilkins was one of three of Obama's simultaneous nominations to the U.S. Court of Appeals for the D.C. Circuit. The Senate last year confirmed Patricia Millett and Cornelia Pillard.

Wilkins only needs the support of Senate Democrats to win confirmation. If he's confirmed, Wilkins would be the fourth Obama pick since May to take a seat on the D.C. Circuit.